Commonwealth v. Ducey

• Decision Date: 26 February 1879
• Citation: 126 Mass. 269
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Commonwealth v. John Ducey & others

126 Mass. 269

Commonwealth v. John Ducey & others

Supreme Court of Massachusetts

February 26, 1879

Suffolk. Indictment in two counts. The first count charged that the defendants, on August 25, 1878, at Boston, "with force and arms, in and upon one Henry Dawson, then and there in the peace of said Commonwealth being, an assault did make, he the said Dawson also then and there being a peace officer, called a police officer, and then and there also being in the due and lawful discharge of his duties as such officer." The second count charged a similar assault upon Thomas A Simpson, also a police officer.

Trial in the Superior Court, before Putnam, J., who allowed a bill of exceptions in substance as follows:

On July 9, 1878, the board of police commissioners of the city of Boston passed the following order: "Ordered, that the police officers of the city of Boston be and they are hereby specially appointed and authorized to enter at any time upon the premises of any person licensed to sell intoxicating liquors, under the provisions of chapter 99 of the acts of the year 1875, to ascertain the manner in which such person conducts his business, and to preserve order; and also do all other acts which officers so appointed are authorized by said statutes to do or perform." This order was communicated to the chief of police of the city, who forthwith sent a copy to each captain of police, with a written order directing it to be communicated to all the officers, which was done. Under this order, the captain of the police station to which Dawson and Simpson were attached, directed them to go out on Sunday August 25, 1878, and visit all liquor shops which they could find open, not designating any particular places; and instructed them to enter all licensed places found open, and to enter them for the purpose of ascertaining how the business was conducted.

On the day above named, Dawson and Simpson, while passing a certain saloon, saw several persons going into an outside door which opened from an entry to the street, through which entry people could pass to apartments above, not occupied by the proprietor of the saloon, and also to a side room communicating by a door with the bar-room, where liquors were sold. The proprietor had a license to sell intoxicating liquors, which prohibited him from selling on the Lord's day. Both of these rooms were under the control of the proprietor of the saloon, and were covered by the license and were part of the licensed premises.

The officers testified that, suspecting that liquors were being sold, and for the purpose of ascertaining what was going on they went into the entry, and followed two men through a door which led from the entry into the side room described above; that they passed from the entry into the side room so quickly that they could not have been prevented from entering by anybody in the side room; that there were seven or eight men in this side room, among whom were the defendants; that when the officers entered the side room they started across it to enter the bar-room by a door that communicated with the side room, and were prevented by the defendants, and pushed by them into the entry.

It was agreed that, if the officers had no legal authority to enter these premises, no more force was used by the defendants than was reasonably necessary to prevent them from entering.

The defendants asked the judge to instruct the jury as follows "1. The officers entered without authority, and were trespassers. 2. The authority delegated by the police commissioners to all police officers, to enter at their own discretion, at any time, any licensed place, or all licensed places, was a general authority, and not a special authority, and in contravention of the spirit of the law. 3. The authority given by the board of police commissioners of the city of Boston, to visit all places licensed to sell liquor, to see how said persons conduct their business, is not such authority as was intended by the Legislature. The particular shop or place, the owner of the shop or place, the time of such visit, and the officers authorized to make such visit, should be specially designated. Such a special order would be contrary to the elementary principles, and in direct violation of the constitutional right of the citizen, as set forth in the Declaration of Rights. 4. The authority given to the board of police commissioners by the St. of 1875, c. 99, § 11, and by said commissioners delegated to the police officers of the city of Boston, to enter at any time upon the premises of any person licensed to sell liquor, to see how said business is carried on, does not authorize an officer to...